[CPEO-BIF] ASTM Releases Guide for Continuing Obligations for Stewardship of Contaminated Properties

[Bob Wenzlau <bob@terradex.com>]

To the Brownfield Community,

ASTM published this week a new standard providing guidance for Continuing Obligations on contaminated properties. In this note I wanted to introduce the guide, and share its purpose.  Years in the making, it seemed reasonable to share the news.

The guide establishes basic procedures to improve the protectiveness at properties impacted by contamination. The guide starts where the Phase I guidance ends: the Phase I guidance seeks to identify environmental conditions prior to acquisition.  The recently published guide starts with consideration of Phase I findings, and seeks to guide a new landowner with steps to maintain health and environmental protectiveness when the property is owned. A landowner might discover in a Phase I that they have an institutional control, or a recognized environmental condition, and this guide brings guidance with what to do next.  The guide implements a four-step process to identify and organize the continuing obligations, then take any initial steps after property purchase, and finally monitor and maintain these obligations through the term of ownership. The guide equally helps a landowner discern they might not hold any significant obligations either.

Continuing obligations reach is far affecting not only the location of an environmental release, but also any property impacted by contamination.  The guide can therefore be informative to an offsite landowner guiding their efforts to protect against vapor intrusion. The guide does not exist in a vacuum as there are already regulatory and commercial environments providing impetus for protectiveness.  What this guide does to is help structure the landowner's role, and establishes a triangle of interest including regulatory, responsible parties and now the landowner.

The development of the guide began over six years ago. My personal insight was that the marketplace celebrated the ribbon cutting of the brownfield property, but few metrics existed to help assure protectiveness of remedy components embedded in redeveloped brownfield properties. I recall brownfield developers saying they saw little guidance existed, and they performed their duties in a liability cloud.  CERCLA offered landowners limited liability protections, of which continuing obligations are a integral component, but left off with few practical steps beyond statutory citations.

Into this gap we launched the ASTM process.  ASTM seemed an appropriate venue given their development of a Phase I standard.  ASTM enjoyed participation with USEPA in the Phase I process, and that participation was extended to the continuing obligations standard. ASTM also brought brilliant thinkers to craft a guide.  An obvious shortcoming was the absence of an environmental justice community participation, but in my own view the benefit of an institutionalized guidance superseded finding a separate forum that would incorporate all interest.  As such, I viewed the guide as a start, knowing that the methods would improve over time. 

As we built the guide, we soon learned that we would not achieve the precision of a practice standard.  Phase I is a practice standard - essentially a strict methodical recipe.  The continuing obligations guide is softer and more general.  This was appropriate given that the state of long term stewardship of contaminated properties is not as well developed, and also the circumstances at properties vary from simple (perhaps a simple institutional control) to complex (where contamination exists, but no structure for long term stewardship has been developed).

We have our skeptics, and their insights were important. Some thought this a purely legal space, and one best not offer guidance into an area that has legal underpinnings.  Others thought the guide failed at achieving simplicity that was sought. We had discussions about what is actually binding on a property owner - when is an institutional control in force or not.  In my perspective, it was better to get the guide out there, begin applying it, and work over time to make it better. 

I look forward toward your consideration of our effort.  To learn more, Terradex has developed a blog post at this link. The link will also carry you to the standard at ASTM.  I or my colleague Mike Sowinski would be happy to answer any questions you might have.

-- 
Bob Wenzlau
Terradex, Inc.
650-227-3251 | bob@terradex.com | Read the Monitor: A Terradex Blog


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